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THE  DUTIES 


A  JUDGE  ADVOCATE, 


IN    A    TK1AL    UEFOBK 


A  GENERAL  COURT-MARTIAL, 


COMPILED  FROM  VARIOUS  WORKS  OH  .MILITARY  LAW. 


by 
Captain  R.  C.  GILCHRIST, 

ACTING     JUDOS     ADVOCATE    OXNtB 
Department  So.  Ca..  <?a..  an<l  Fl*. 


hWbhd  with  the  approbation  of  iHp  Sectary  of  War. 


COLUMBIA.  S 
EVANS     AND     COGSWELL 
1864. 


HEAP-QUARTERS  DEP'T  S.   C,  GA.,  AND  FLA.. 
Cb  \hi.im«.\.   - 

The  accompanying  treatise  is  well  calculated  to  be  of  service 
to  officers  called  on  to  perform  tbe  duty  of  Judge  Advocate,  In 
manjT  cases  records  are  so  defective,  through  a  wan  I  f  knowledge 
on  the  part  of  Judge  Advocates,  that  they  vitiate  tl  e  enl 
feedings.  I  recommend  that  tbe  panccion  of  tin.  War  depart- 
ment be  given  to  this  treatise. 

SAM.  JON 

Major-General. 


31Z13C 


PREFACE. 


It  has  been  found  that  many  of  those  appointed  to  fill 
the  very  important  position  of  Judge  Advocate,  however 
well  versed  in  general  knowledge  and  legal  attainments, 
are,  nevertheless,  deficient  in  those  points  of  practice  and 
clerical  nicety  which  are  requisite  in  the  proper  prepara- 
tion of  the  proceedings  of  a  general  court-martial.  Many 
excellent  works  are  extant,  and  from  them  can  be  obtained 
all  the  information  that  could  be  desired  ;  but  these  works 
are  now  difficult  to  be  procured,  and  an  officer  in  the  field, 
called  upon,  for  the  first  time,  to  discharge  the  responsible 
and  multifarious  duties  of  Judge  Advocate,  feels  at  a  loss, 
unaided  by  them,  to  know  how  those  duties  are  to  be  con- 
ducted. 

To  meet  this  want,  the  following  treatise  has  been  pre- 
pared. The  main  object  in  its  compilation  has  been  to  pre- 
sent a  brief,  though  at  the  same  time  comprehensive,  direc- 
tion for  the  management  of  a  case  from  its  inception  to  its 
close ;  with  the  proper  method  of  recording  the  several 
points  likely  to  arise  during  the  trial.  It  is  presumed  that 
the  Judge  Advocate  is  already  fully  instructed  in  the  rules 
of  evidence,  the  general  principles  of  law,  and  the  practice 
of  criminal  courts  ;  and,  therefore,  those  subjects  are  scarce- 
ly touched  upon.  For  them  recourse  must  be  had  to  other 
works,  whose  place  this  does  not  pretend  to  supply. 

By  means  of  this  treatise  access  is  had  to  such  works  as 
Tytler,  McArthur,  Simmons,  Adye,  O'Brien,  De  Hart, 
Hough,  and  others,  now  beyond  the  reach  of  all,  and  from 
which  copious  extracts  are  taken,  to  show  the  several  duties 
which  devolve  on  the  Judge  Advocate.  For  these  extracts 
the  compiler  is  mainly  indebted  to  Captain  Hughes'  excel- 


J717SC 


PREFACE.  f> 

lent  book,  which  bears  the  same  title  as  this.  Within  a 
short  compass  can  thus  be  obtained  the  information  found 
in  them,  and  it  is  now  the  privilege  as  well  as  the  duty  of 
the  Judge  Advocate  to  instruct  himself  in  all  those  matters 
pertaining  to  his  position,  remembering  that 

"  A  Judge  Advocate  is  the  mainspring  of  a  court-mar- 
tial; on  him  the  court  depends  for  information  concerning 
the  legality  as  well  as  the  regularity  of  their  proceedings  > 
if  he  errs,  ail  may  go  wrong.'' — Adye. 

R.  C.  GILCHRIST. 


CONTENTS. 


CHAPTER  I. 

Duties  of  a  Judge  Advocate  previous  to  the  assembly  of  a  gen- 
eral court-martial 9 


CHAPTER  II. 
Duties  of  a  Judge  Advocate  at  a  general  court-martial 10 

CHAPTER  III. 

* 
Duties  of  a  Judge    Advocate  as  an  officer   of  a  general  court- 
martial 11 

[The  usual  mode  of  recording  on  the  proceedings  the  vari- 
ous incidents  liable  to  occur  at  B  general  court-martial, 
are  included  under  the  several  beads,  and  red 

by  being  in  italics.] 

Assembly,  etc..  etc.,   of  the  court 12 

Challenge  of  the  members 13 

Court  sworn  in  ;  form  of  oath 14 

Counsel  allowed  prisoner lb' 

Postponement  of  trial Hi 

Charges  read  and  discussed 16 

Prisoner  called  on  to  plead  ;  various  pleas 17 

Examination  of  Judge  Advocate  and  prosecutor 18 

Examination  of  a  member  of  the  court 19 

Witnesses  called  in  :  form  of  oath 20 

Examination  of  witnesses 20 

Questions  how  to  be  put ;  rules   relative   to  reception  of  ques- 
tions  21 

Witness  may  refresh  his  memory  by  referring  to  memoranda.  .22 

Examination  must  be  in  presence  of  whole  court 22 

Evidence  of  a  witness  who  is  sick  and  unable  to   attend   the 

court  ;  how  taken 23 

Deposition  of  an  absent  witness  residing  at  a  distance;   how 

taken 24 

Written  documents:  how  authenticated  and  recorded 24 

Evidence  read  over  to  witness  previous  to  his  leaving  the  court.  25 

Witness  can  correct  or  amend  the  evidence  he  has  given 25 

Adjournment  of  court 26 

Reassembly  of  court,  and  fair  copy  of  proceedings 26 


8  CONTENTS. 

Prosecution  closed 27 

Defence 28 

Prisoner's  address 28 

Reply 28 

The  court  can,  at  any  stage  of  the  proceedings  hefore  finding, 

recall  evidence  for  examination 29 

The  trial  finished 29 

Finding:  various  forms  of  finding:  how  to  collect  votes,  etc.. 29 
The  court  may  adjourn,  and  take  time  to  consider  their  verdict 

and  sentence 31 

Sentence;  votes  how  to  be  collected;  various  punishments  to 

different  grades 31 

Mitigating  circumstances,  and  recommendations  to  mercy... .33 

Closing  the  proceedings  and  making  up  the  record 34 

Revision 35 


CHAPTER  IV. 
Duties  of  a  Judge  Advocate  as  public  prosecutor 37 

CHAPTER  V. 

Duties  of  a  Judge  Advocate  as  legal  adviser  to  a  court-martial. 38 

CHAPTER  VI. 

Duties  of  a  Judge  Advocate  after  the  proceedings  of  a  general 
court-martial  are  closed 39 

CHAPTER  VII. 
On  preparation  of  charges * .  .40 


CHAPTER  I. 

DUTIES    OF    JUDGE    ADVOCATE    PREVIOUS    TO    ASSEM- 
BLY   OF    A    GENERAL    COURT-MARTIAL. 

1.  T?he  orders  directing  the  assembly  of  a  gen- 
eral court-martial  having  issued,  and  a  copy  of 
them  transmitted  to  the  Judge  Advocate  nomi- 
nated to  conduct  the  proceedings,  together  with 
such  instructions  as  may  be  considered  necessary 
for  his  guidance,  it  is  his  province  to  summon 
every  person  whose  testimony  is,  in  any  shape, 
necessary  for  the  prosecution  or  defence  ;  and  the 
Judge  Advocate  is  held  responsible  that  all  wit- 
nesses whose  names  are  appended  to  the  charges 
( or  appear  in  the  proceedings  of  a  court  of  inquiry, 
if  there  has  been  one),  and  whose  evidence  can 
be  necessary  to  the  trial,  are  duly  summoned  and 
properly  examined.  He  must,  from  the  informa- 
tion of  the  accuser,  and  in  all  practicable  ways, 
instruct  himself,  before  entering  on  the  trial,  in 
all  the  circumstances  of  the  case,  and  by  what 
evidence  the  whole  particulars  are  to  be  brought 
out.  Of  these  it  is  proper  to  prepare  in  writing  a 
short  analysis  for  his  own  regulation  in  the  con- 
duct of  the  trial  and  examination  of  witnesses,  so 
that  he  may  not  waste  the  time  of  the  court  by 
adducing  witnesses  collected  at  random,  who  may 
prove  really  incompetent  to  furnish  any  informa- 
tion, and  whose  presence  in  their  respective  com- 
mands may  be  more  needed  for  the  discharge  of 
their  regular  duties. 

2.  A  Judge  Advocate,  on  receiving  instructions 
to  conduct  a  trial,  should  immediately  ascertain 
if  a  copy  of  the  charges  on  which  the  prisoner  is 
to  be  arraigned  has  been  transmitted  to  him. 
Having  ascertained  that  he  has  received  a  copy 


10  DUTIES    OF    JUDGE    ADVOCATE, 

of  the  charges  preferred,  the  Judge  Advocate 
should  immediately  address  letters  both  to  the 
prosecutor  (if  there  be  one)  and  prisoner ;  and,  on 
receiving  the  names  of  any  witnesses  required  for 
the  prosecution  and  defence,  issue  a  summons  to 
each  individual :  but  he  should  not  summon  any 
witness  at  the  expense  of  the  government,  nor 
any  officer  of  the  army,  without  the  order  of  the 
court,  unless  satisfied  that  his  testimony  is  neces- 
sary to  the  ends  of  justice.* 

3.  The  summons  should  he  sent  to  the  command- 
ing officer  of  the  regiment  to  which  the  witness 
belongs;  by  which  arrangement  it  is  known  to 
all  parties  when  the  services  of  the  several  wit- 
nesses are  required. 

4.  If  either  of  the  parties  wish  for  the  evidence 
of  a  citizen  of  the  state  where  the  court  is  held, 
he  must  obtain  a  regular  summons  from  the  court, 
and  the  citizen  disobeying  the  summons  may,  on 
the  application  of  the  Judge  Advocate  to  the  com- 
mander of  the  army,  be  arrested  by  military  force 
and  brought  before  the  court,  and  may  be  held 
in  close  confinement  until  he  or  she  shall  consent 
to  testify  .t 


CHAPTEK  II. 

DUTIES  OF    JUDGE    ADVOCATE  AT    A  GENERAL  COURT- 
MARTIAL. 

1.  A  Judge  Advocate  appears  at  a  court-mar- 
tial in  three  distinct  characters :  First,  as  an  offi- 
cer of  the  court :  Secondly,  as  the  adviser  of  the 
court  in  matters  of  form  and  law :  Thirdly,  as 
public  prosecutor.  In  the  first  of  these  charac- 
ters the  Judge  Advocate  registers  and  records  all 
the  acts  of  the  court,  and  all  oral  evidence,  as  near 
as  may  be  in  the  very  words  of  the  witness ;  he 

*  Army  Regulations.  SOS.       t  Act  of  February  17,  186-1. 


AS    OFFICER    OF    THE    COURT.  1  1 

Dotes  the  hour  of  assembly  and  adjournment; 
and  generally  all  incidental  occurrences,  particu- 
larly the  clearing  of  the  court,  the  cause  thereof, 
and  the  result  of  the  deliberations  in  closed  court. 
The  Judge  Advocate  advises  the  court  on  points 
of  law,  custom,  and  form,  and  invites  its  atten- 
tion to  every  deviation  therefrom.* 

2.  The  Judge  Advocate  can  not,  on  any  grounds, 
be  challenged,  as  he  acts  at  a  general  court-mar- 
tial on  behalf  of  the  government,  and  has  no  ju- 
dicative voice.f 

3.  A  Judge  Advocate  should  give  every  reason- 
ble  assistance  to  the  prisoner  in  his  defence,  either 
in.  point  of  law  or  of  justice.  It  is  his  duty 
that  the  proof,  on  both  the  part  of  the  govern- 
ment and  the  prisoner,  should  be  properly  laid  be- 
fore the  court;  and  where  any  doubtful  point  may 
arise,  he  should  rather  incline  to  the  part,  of  the 
prisoner;  and  nothing  should  induce  him  to  omit 
any  circumstances  in  the  minutes  of  the  proceed- 
ings that  may  have  a  tendency  to  palliate  the 
charges  against  the  party  aecused.t  J  ustice  is  the 
object  for  which  the  court  is  convened  and  the 
Judge  Advocate  appointed  ;  to  this  aim  ail  their 
inquiries  and  attention  ought  to  be  directed;  and 
if,  in  the  prosecution  of  the  design,  the  prisoner 
should  be  benefited,  the  efforts  of  the  court,  or  of 
the  Judge  Advocate,  will  have  been  satisfactorily 
and  legitimately  exerted.* 


CHAPTEE  III. 

DUTIES  OF  JUDOE    ADVOCATE  AS  AN  OFFICER  OF    THE 
COURT. 

1.   As  an  officer  of  the  court  the  Judge  Advo- 
cate reads  the  orders  constituting  it,  administers 


*  "iiniuions.  t  D  ■  Hart.  7  McArthur. 


12  DUTIES  OF  JUDGE  ADVOCATE, 

the  requisite  oaths,  arraigns  the  prisoner,  and  puts 
down  the  questions  to  the  witnesses;  during  the 
trial,  also,  it  is  his  duty  to  take  down  in  writing 
the  evidence  of  the  several  witnesses;  and  although 
this  may  appear  to  be  a  matter  of  little  impor- 
tance, still  the  correctness  of  the  proceedings,  and 
the  expediting  of  the  trial,  depend  much  on  the 
quickness  and  precision  with  which  the  Judge  Ad- 
vocate performs  this  seemingly  unimportant  part 
of  his  duty.*  The  proceedings  should  be  written 
in  a  clear  and  legible  hand,  without  erasures  or 
interlineations;  the  pages  are  to  be  numbered,  and 
the  sheets  are  to  be  stitched  together  at  the  top, 
and  made  up  separately,  upon  each  trial. 

2.  In  the  heading  of  the  proceedings  it  must 
invariably  be  stated  by  what  authority  the  court 
is  assembled — thus: 

Proceedings  of  a  general  court-martial,  convened 

at ,  by  virtue  of  the  following  order,  viz :  then 

follow  all  the  orders,  arranged  according  to  their 
respective  dates  or  numbers. 

3.  The  officers  nominated  to  compose  a  general 
court-martial  having  assembled  at  the  place  and 
time  appointed  in  orders,  the  Judge  Advocate 
stands  up  and  calls  over  their  names;  each  mem- 
ber, on  answering  to  his  name,  takes  his  seat  on 
either  side  of  the  President  according  to  his  rank. 
The  Judge  Advocate  sits  opposite  to  the  Presi- 
dent, the  prisoner  to  the  right,  and  the  witness  on 
the  left  of  the  Judge  Advocate ;  the  public,  mili- 
tary, and  civilians  take  their  seats  around  the  room 
at  a  short  distance  from  the  court. 

4.  The  court  being  formed,  the  prisoner  is  called 
before  it  by  name,  which  circumstance  the  Judge 
Advocate  thus  records  on  the  proceedings : 

Captain ,  of  the regiment ,  ap- 
peals as  prisoner  before  the  court ;  or , 

private  in  company  ,  regiment  ,  is 

called  into  court. 


*  Kennedy. 


AS    OFFICER    OF    THE    COl'KT.  1# 

CHALLENGE. 

5.  On  the  prisoner  being  called  into  court  the 
Judge  Advocate  reads  the  orders  convening  the 
court;  after  which  he  asks  the  prisoner  if  he  has 
any  exception  or  cause  of  challenge  to  make  to 
any  of  the  officers  nominated  to  siF  on  the  court- 
martial  before  which  he  appears  for  trial.  If  he 
replies  in  the  negative,  the  trial  proceeds. 

G.  But  if  the  prisoner  objects  to  any  of  the  mem- 
bers, the  Judge  Advocate  puts  the  following  ques- 
tion to  him  :  13e  pleased  to  state  your  reasons  for 
objecting  to  Col. sitting  on  the  court-mar- 
tial for  your  trial  I  The  answer  to  this  question, 
with  all  the  evidence  which  the  prisoner  may  wish 
to  adduce  to  prove  the  validity  of  the  challenge, 
must  be  taken  down  regularly,  and  fully  recorded 
at  length  on  the  proceedings.  The  member  ob- 
jected to  then  withdraws,  and  the  court  being 
closed,  deliberates  and  decides  on  the  validity  of 
the  challenge. 

7.  The  usual  manner  of  recording  such  delibera- 
tions is  as  follows  : 

The  court  is  closed,  and  having  taken  into  consid 
eration  the ,  deems  the  objection  valid;  or  in- 
valid; or  decides  the  papers  handed  shall  or  can  not 
be  received  ;  or  the  question  shall  or  shall  not  be  put 
to  the  witness.  The  court  is  opened,  and  the  forego- 
ing decision  is  read. 

The  court  is  not  bound,  and  generally  ought  not, 
to  give  the  grounds  of  that  decision.* 

8.  The  closing  and  opening  of  the  court  should 
be  invariably  noted  on  the  proceedings. 

9.  When  practicable,  all  challenges  should  be 
admitted.  It  is  not  only  right  to  be  as  mild  as 
possible  toward  a  prisoner,  but  it  is  right  also  to 
let  the  prisoner  and  the  public  see  that  such  is  the 
case.  A  culprit  should  never  be  made  to  appear 
in  the  light  of  a  martyr;  for  when  this  takes  place, 

*  Sir  C.  J.  Napier. 


14  DUTIES    OF    JUDGE    ADVOCATE. 

much  of  the  advantage  of  punishment  is  lost;  be- 
sides, no  officer  who  has  been  challenged  likes  to 
sit  as  a  member  of  a  court,  and  it  is  hard  to  oblige 
him  to  do  so,  unless  the  good  of  the  service  de- 
mands it* 

10.  The  prisoner  may  challenge  the  whole  court 
as  being  incompetent  to  try  him,  and  object  to  its 
jurisdiction.  In  this  case  the  court  is  cleared;  it 
decides  upon  the  validity  of  the  prisoner's  objec- 
tions, and  declares  the  result  of  its  deliberations 
in  open  court.  Should  the  decision  be  in  favor  of 
the  prisoner's  objection,  the  court  separates,  and 
the  Judge  Advocate  reports  and  applies  to  superior 
authority  for  instructions. t 

11.  The  right  of  challenge  belongs  as  well  to 
the  Judge  Advocate  as  to  the  accused,  and  should 
be  exercised  when  occasion  requires.*)* 

THE    COURT    SWORN    IN. 

12.  When  all  the  objections  are  disposed  of,  the 
Judge  Advocate  proceeds  to  swear  in  the  court 
by  administering  the  prescribed  oath  to  the  presi- 
dent, and  then  to  the  members  collectively  on  his 
right  and  left;  all  standing,  lift  the  right  hand 
ungloved,  while  the  Judge  Advocate  recites,  in 
an  audible  voice : 

"  You,  Colonel  A.  B.,  Major  C.  D.,  Captain  E.  F. 
(thus  naming,  with  his  rank,  each  member  of  the 
court),  do  swear  that  you  will  well  and  truly  try 
and  determine,  according  to  evidence,  the  matter 
now  before  you  between  the  Confederate  States 
of  America  and  the  prisoner  to  be  tried,  and  that 
you  will  duly  administer  justice,  according  to  the 
provisions  of  'An  act  establishing  rules  and  arti- 
cles for  the  government  of  the  armies  of  the  Con- 
federate States/  without  partiality,  favor,  or  affec- 
tion ;  and  if  any  doubt  should  arise,  not  explained 
by  said  articles,  according  to  your  conscience, 
the  best  of  your  understanding,  and  the  custom 


*  O'Brien,  253.  +  De  Hart. 


AS    OFFICER    OF    THE    COURT.  15 

of  war  in  like  cases ;  aod  you  do  further  swear 
that  you  will  not  divulge  the  sentence  of  the 
court  until  it  shall  be  published  by  the  proper  au- 
thority; neither  will  you  disclose  or  discover  the 
vote  or  opinion  of  any  particular  member  of  the 
court-martial,  unless  required  to  give  evidence 
thereof,  a?  a  witness,  by  a  court  of  justice,  in 
due  course  of  law.    So  help  you  God  " 

13.  The  President  of  the  Court  shall  then  ad- 
minister to  the  Judge  Advocate  the  following 
oath,  the  members  of  the  court  remaining  stand- 
ing, the  Judge  Advocate  also  standing,  with  his 
right  hand  lifted,  ungloved  : 

u  You,  A.  B.,  do  swear  that  you  will  not  disclose 
or  discover  the  vote  or  opinion  of  any  particular 
member  of  the  court-martial,  unless  required  to 
give  evidence  thereof,  as  a  witness,  by  a  court  of 
justice,  in  due  course  of  law;  nor  divulge  the 
sentence  of  the  court  to  any  but  the  proper  au- 
thority, until  it  shall  be  duly  disclosed  by  the 
same.  •  So  help  you  God." 

14.  The  prescribed  oaths  having  been  adminis- 
tered, the  Judge  Advocate  records  on  the  proceed- 
ings : 

The  court  tvas  then  duly  sworn  by  the  Judge 
Advocate,  and.  the  Judge  Advocate  was  duly  sworn  by 
the  presiding  officer  of  the  court  in  the  presence  of 
the  accused. 

15.  It  is  to  be  observed  that  "on  all  trials  for  felo- 
ny the  defendant  must  personally  be  present/'*  and 
the  record  must  show  that  he  was  present  during 
the  examination  of  all  the  witnesses  up  to  the 
tinal  closing  of  the  court  for  deliberation.  In  the 
civil  courts  "  this  right  is  so  inherent  and  inaliena- 
ble, that  a  judgment  will  be  reversed  where  it  ap- 
pears that  the  defendant  was  absent  at  the  rendi- 
tion of  the  verdict,  though  his  presence  was  at 
the  time  waived  by  the  counsel. "y 

*  1  Chitty,  C.  L.  413 :  2d  Hale,  216.        f  6th  Harris,  103. 


16  DVTIES    OF    JUDGE    ADVOCATE, 

COUNSEL    ALLOWED    THE    PRISONER. 

16.  It  is  at  this  stage  of  the  proceedings  that 
the  prisoner  asks  permission  of  the  court  to  he 
allowed  the  assistance  of  a  professional  gentle- 
man, or  a  friend  in  the  court,  during  the  trial ; 
but  no  person  is,  on  any  account,  to  be  permitted 
to  address  the  court,  or  to  interfere  in  any  man- 
ner with  its  proceedings,  except  the  parties  them- 
selves. Such  assistance  must  be  restricted  to  the 
giving  advice,  framing  questions,  or  offering,  in 
writing,  any  legal  objections  that  the  course  of 
the  proceedings  may  appear  to  render  necessary.* 
The  counsel  or  friend  should  commit  to  paper 
the  necessary  interrogatories  as  they  may  arise, 
which  the  prisoner  gives,  on  separate  slips,  to  the 
Judge  Advocate.f 

POSTPONEMENT    OF    TRIAL. 

17.  Application  for  delay  or  postponement  of 
trial  must,  when  practicable,  be  made  to  the  au- 
thority convening  the  court.  When  made'to  the 
court  it  must  be  before  plea,  and  will  then,  if  in 
the  opinion  of  the  oourt  well  founded,  be  referred 
to  the  authority  convening  the  court  to  decide 
whether  the  court  shall  be  adjourned  or  dissolved, 
and  the  charges  reserved  for  another  court-! 

18.  Upon  application  by  the  accused  for  post- 
ponement on  the  ground  of  absence  of  witness,  it 
ought  distinctly  to  appear  on  oath  :  first,  that  the 
witness  is  material,  and  how;  second,  that  the 
accused  has  used  due  diligence  to  procure  his  at- 
tendance; and,  third,  that  he  has  reasonable 
ground  to  believe,  and  does  believe,  that  he  will 
be  able  to  procure  such  attendance  within  a  rea- 
sonable time  stated. § 

CHARGES    READ    AND    DISCUSSED. 

19.  The  court  having  been  duly  constituted  by 

*  Kennedy.  f  Hough. 

%  Array  Reg.,  p.  864.  2  Idem,  p.  80i. 


AS    OFFICER    OF    THE    COIRT.  1? 

the  prescribed  oaths  having  been  administered, 
the  Judge  Advocate  reads  the  charges  in  an  audi- 
ble voice;  on  hearing  which,  should  any  doubt 
arise,  whether  originating  with  the  members  of 
the  court  or  with  the  parties  on  trial,  with  regard 
either  to  the  competency  of  the  court's  jurisdiction 
or  the  relevancy  of  the  charges,  tiiese  doubts 
must  now  be  discussed  A  general  court-mar- 
tial ought  to  satisfy  itself,  previous  to  the  arraign- 
ment of  the  prisoner,  that  the  facts  alleged  in  the 
charge  brought  before  it  do  constitute  the  crimi- 
nal offence  intended,  and  that  they  are  described 
in  such  a  legal  manner  as  would  authorize  it  to 
award,  on  conviction,  the  punishment  which  the 
law  prescribes  for  each  particular  offence.* 

20.  If  any  doubts  arise  or  any  objection  is  made 
to  the  charges  by  the  court,  Judge  Advocate,  or 
prisoner,  the  proceedings,  and  the  decision  of  the 
court  thereon,  must  be  regular]}'  and  fully  re- 
corded. 

21.  It  must,  however,  be  borne  in  mind  that, 
when  a  charge  has  been  approved  by  proper  au- 
thority, and  ordered  to  be  investigated,  it  is  not 
competent  for  the  Judge  Advocate  or  any  other 
person  to  make  alterations  in  it  without  the  con- 
sent of  such  authority  being  previously  obtained. v 

ARRAIONMEXT    OF    TRISONER. 

22.  The  Judge  Advocate  now  asks  the  prisoner, 
bv  his  name  and  designation  : 

Captain  ,  you  have  heard  the  charge  {or 

charges)  preferred  against  you  ;  how  say  you,  guilty, 
or  not  guilty  ? 

23.  The  ordinary  plea  is  "  not  guilty/'  but  some- 
times the  prisoner  stands  mute,  or  pleads  '-guil- 
ty." In  either  ease  the  trial  proceeds;  for  it  is  es- 
sential that  the  facts  and  particulars  should  be 
known  to  those  whose  duty  it  is  to  report  on  the 

•  Kennedy.     See  chaprer  VII.  t  Tytler. 


tCj  DUTIES    OF    JUDGE     ADVOCATE, 

ease,  or  who  have  discretion  in  carrying  the  sen- 
tence into  effect.*  If  there  is  any  exception  to 
this  remark,  it  is  where  the  specification  is  so  full 
and  precise  as  to  disclose  all  the  circumstances  of 
mitigation  or  aggravation  which  accompanied  the 
offence.  Where  that  is  the  case,  or  where  the 
punishment  is  fixed  and  no  discretion  is  allowed, 
explanatory  testimony  can   not  be  needed. f 

24.  Sometimes  pleas  in  bar  of  trial  are  submit- 
ted by  the  prisoner  for  the  consideration  of  the 
court :  whatever  the  plea  may  be,  it  must  be  fully 
recorded  on  the  proceedings  [if  a  written  state- 
ment of  the  plea  is  handed  into  court,  it  is  read  by 
the  prisoner  or  the  Judge  Advocate,  and  then  ap- 
pended to  the  proceedings],  as  well  as  the  deci- 
sion of  the  court  thereon.  If  the  plea  is  consid- 
ered valid,  an  extract  of  the  proceedings  of  the 
court  on  this  subject  is  sent  to  the  authority  who 
convened  the  court  for  his  information  and  in- 
structions, the  court  adjourning  till  they  are  re- 
ceived; but  if  the  plea  is  considered  invalid,  such 
is  duly  recorded,  and  the  trial  proceeds — the  de- 
cision of  the  court  being  communicated  to  the 
prisoner  by  the  Judge  Advocate  on  the  court  be- 
ing opened  to  the  public* 

25.  The  prisoner  having  pleaded  to  the  charge, 
the  Judge  Advocate  cautions  all  witnesses  on  the 
trial  to  withdraw,  and  to  return  to  court  only  on 
being  called.;};  Which  is  noted  on  the  proceedings 
thus  : 

The  witnesses  are  directed  to  retire.  • 

EXAMINATION    OF    JUDGE    ADVOCATE    AND    PROSECU- 
TOR. 

26.  The  Judge  Advocate  and  prosecutor  being 
necessarily  present  during  the  examination  of  all 
the  witnesses,  if  required  to  give  evidence,  are 
sworn  immediately  after  the  opening  of  the  case; 

*  Simmons.         t  Opinions  of  A.  G.,  2,  637.         J  Hughes. 


AS    OFFK.'KR    OF    THE    COT'R'l  .  \\i 

nor  would  it  be  proper,  at  any  other  stage  of  the 
proceedings,  to  admit  their  examination  or  deposi- 
tion in  chief,  except  when  called  as  witnesses  for 
the  defence.*  And  when  the  prosecutor's  exami- 
nation as  a  witness  is  finished,  he  should  request 
permission  to  remain  in  court ;  which  circumstance, 
and  the  court's  acquiescence  therein,  should  be 
noted  on  the  proceedings  thus  : 

The  prosecutor  here  asks  permission  to  remain  in 
court,  which  request  is  granted. 

'21 .  But  it  is  to  be  remarked  that  u.n  informant 
is  allowed  to  be  present  in  court  for  the  purposes 
of  material  justice,  as  an  assistant  to  the  Judge. 
Advocate,  and  that  he  can  not  of  himself  propose 
any  questions  or  make  any  observations  whatever. 
Should  anything  occur  to  him  during  the  proceed- 
ings, he  must  state  it  to  the  Judge  Advocate,  who, 
if  he  thinks  the  remarks  are  just,  will  avail  him- 
self of  the  suggestion. f 

EXAMINATION    OF    A    MEMBER    OF    THE    COURT. 

28.  Notwithstanding  there  is  no  legal  objection 
to  a  member  of  a  court-martial  giving  evidence 
before  the  court  of  which  he  is  a  member,  3-et  it 
certainly  appears  to  be  highly  objectionable,  espe- 
cially when  a  member  of  a  court  is  required  to 
give  evidence  on  the  part  of  the  prosecution.  If 
it  is  ascertained,  previous  to  the  assembly  of  the 
court,  that  the  evidence  of  an  officer  nominated  on 
u  court-martial  is  required,  he  should  be  immedi- 
ately relieved ;  and  if  a  member,  after  taking  his 
seat  and  being  sworn  in,  is  called  on  to  depose  to 
facts,  justice  demands  that  he  should  not  resume 
his  seat  as  a  member,  to  decide  on  evidence  he  has 
himself  given  ;  but  when  a  member  is  called  on  to 
give  evidence  as  to  the  character  of  a  prisoner,  no 
such  objection  exists;  and  in  al!  cases  it  is  cus- 
tomary tor  a  member  so  sworn  to  give  his  testi- 

*  Simmoiii.  t  Kennedy. 


"Zi)  DUTIES    OF    JUDGE    ADVOCATE, 

mony  as  to  the  character  of  the  prisoner,  and  then 
to  resume  his  seat.* 

WITNESSES    CALLED   IN    AND    SWORN. 

29.  When  a  witness  is  produced,  and  before  he 
is  sworn,  any  objection  to  his  competency  ought 
to  be  stated  ;  and  the  course  of  proceeding  is,  that 
the  party  who  objects  to  the  witness  should  state 
all  his  objections  at  the  same  time,  in  order  to  pre- 
vent unnecessary  delay.  These  objections  must 
be  fully  recorded  on  the  proceedings. 

30.  All  persons  who  give  evidence  before  a 
court-martial  are  to  be  examined  upon  oath  in  the 
following  words  : 

"  You  swear,  or  affirm  (as  the  case  may  be), 
the  evidence  you  shall  give  in  the  cause  now  in 
hearing,  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth.     So  help  you  God."f 

31.  The  prescribed  oath  or  affirmation  having 
been  administered  to  the  witness  by  the  Judge 
Advocate,  he  enters  a  minute  on  the  proceedings 
that  such  has  been  done,  having  previously  re- 
corded the  rank,  name,  and  occupation  of  the 
witness  at  full  length. 

CHARGES    SHOULD    NOT   BE   READ    TO   WITNESSES. 

32.  It  is  not  essential  to  the  ends  of  justice,  or 
the  regularity  of  the  proceedings,  nor  by  any 
means  conducive  to  the  better  examination  of 
witnesses,  that  the  charges  should  be  read  to  them ; 
on  the  contrary,  the  perusal  of  the  charges  to  a 
witness  has  a  tendency  to  put  him  at  once  upon  a 
narrative,  and  not  to  keep  him  from  it.  The  wit- 
ness is  always  furnished  with  dates  by  it,  and  with 
other  most  essential  particulars.^ 

EXAMINATION    OP   WITNESSES. 

33.  The   testimony  of  each   witness   is   to    be 

*  Hughes.         f  73d  Article  of  War.  %  Sir  Jasper  Nicolls. 


AS    OFFICER    OF    THE    COURT.  21 

separately  and  distinctly  recorded  on  the  proceed- 
ings in  this  manner: 

Lieutenant ,  of  the  —  regiment,  a  witness  on 

the  part  of  the  prosecution,  called  into  court  and  duly 
.worn. 

34.  And  when  his  evidence  is  finished,  an  entry 
is  made  to  this  effect : 

The  witness  withdraw*. 

35.  It  is  usual  to  take  down  the  evidence  by  way 
of  question  and  answer,  and  on  recording  each  in- 
terrogatory the  party  putting  it  should  be  dis- 
tinctly noted — as  thus  : 

Examined  by  the  Judge  Advocate.  Cross-examined 
by  the  prisoner.  .Re-examined  by  the  Judge  Advo- 
cate.    Examined  by  the  court. 

36.  Sometimes,  however,  a  witness  gives  his  tes- 
timony in  the  way  of  narrative,  in  which  manner  it 
must  likewise  be  taken  down  in  writing,  and  the 
Judge  Advocate  is  bound  to  adhere  to  the  precise 
words  of  the  witn< 

37.  The  Witness  is  examined  in  chief  by  tin- 
party  who  produces  him.  The  opposite  party 
next  cross-examines  him  ;  and  in  case  of  new 
matter  being  introduced  on  the  cross-examina- 
tion, the  party  calling  him  re-examines  into  that 
matter;  and  then  the  court  puts  such  questions 
to  the  witness  as  it  thinks  necessary.  It  is  es- 
sential to  the  regularity  of  the  proceedings  of  a 
court-martial  that  this  mode  of  examining  wit- 
nesses be  strictly  adhered  to;  for  whenever  the 
parties  or  the  court  put  questions  backward  and 
forward,  first  one  and  then  the  other,  it  confuses 
the  witness,  perplexes  the  case,  and  most  mate- 
rially incapacitates  the  party  producing  the  wit- 
ness from  deriving  that  benefit  from  his  testimony 
which  he  might  otherwise  have  done.  If  a  ques- 
tion as  to  any  material  fact  has  been  omitted  upon 
the  examination-in-chiefj  it  is  to  be  suggested  to 

*  Kennedy. 


4Z  DUTIES  OF  JUDGE  ADVOCATE, 

the  court,  which  will   exerciao  its   discretion   in 
putting  it  to  the  witness.* 

38.  Leading  questions,  that  is,  such  as  instruct 
the  witness  how  to  answer  on  material  points,  are 
not  allowed  on  the  examination-in-chief — for  to 
direct  witnesses  to  their  evidence  would  only  serve 
to  strengthen  that  bias  which  they  are  generally 
too  much  disposed  to  feel  in  favor  of  the  party 
calling  theni.f 

39.  All  parties  may  object  to  any  question,  but 
the  ground  of  objection  should  be  clearly  stated. 
The  court  decides  whether  the  question  shall  be 
put,  shall  be  shaped  in  a  different  form  as  to  the 
words,  or  shall  be  rejected  altogether.  The  court's 
decision  is  final,  and  the  party  must  rest  satisfied 
with  it.t 

40.  A  party  before  the  court  can  not  object  to 
a  question  put  by  the  court,  though  he  may  to  a 
question  put  by  a  member  of  it,  before  the  collec- 
tive opinion  of  the  court  has  been  expressed  in 
relation  to  it.  The  reception  of  a  question  by  the 
court,  originating  with  an  individual  member, 
makes  it  a  question  by  the  court;  but  where  re- 
jected, in  order  to  save  a  contradiction  in  the 
record,  it  is  necessarily  written  down  as  by  a 
member.§ 

WITNESS    MAY  REFRESH  HIS   MEMORY  BY  REFERRING 
TO  MEMORANDA. 

41.  If  a  witness  has  made  a  memorandum  of 
facts,  he  may  refresh  his  memory  by  referring  to  it; 
lie  is  not  allowed  to  read  a  written  statement  of  his 
evidence. ||  The  opposite  party,  when  cross-exam- 
ining, is  invariably  permitted  to  inspect  the  mem- 
oranda referred  to  by  a  witness.^ 

EXAMINATION   MUST  BE  IN  PRESENCE  OF    WHOLE 
COURT. 

42.  It  is  essential  that  the  examination  of  wit- 

*  Bombay  Military  Regulations,     f  Philips'  Law  of  Evidence. 
1  Hough.  a  De  Hart,  ||  Starkie.  «[  1  Philips. 


AS    OFFICER    OF    THE    COURT.  23 

nesses  should  take  place  in  the  presence  of  all  mem- 
bers of  the  court,  and  as  in  fact  no  act  performed 
by  part  of  the  court  can  be  legal,  the  unavoidable 
absence  of  any  member,  by  sickness  or  otherwise, 
at  any  period,  necessarily  prevents  his  resuming 
his  seat.* 

43.  Whenever  a  member  leaves  a  court  with  the 
president's  permission,  the  Judge  Advocate  ceases 
to  record  any  evidence  'hiring  his  absence.f 

44.  If  necessary  to  examine  any  witness  who 
is  prevented  attending  by  sickness,  the  whole 
court  must  adjourn  to  the  place  where  the  witness 
may  be.  When  all  the  parties  have  assembled  in 
the  room  of  the  sick  person,  the  Judge  Advocate 
must  call  over  the  names  of  the  officers  composing 
the  court  in  the  presence  of  the  prisoner,  to  ascer- 
tain that  all  are  present  previously  to  administer- 
ing the  oath,  or  taking  the  evidence  of  the  wit- 
ness. This  circumstance,  and  the  return  of  the 
court  to  its  former  place  of  assembly,  should  be 
minuted  on  the  proceedings — thus: 

Captain  A.  B.,  having  been  reported  unable,  from 
illness,  to  leave  his  quarters,  and  the  surgeon  of  his 
regiment  being  of  opinion  that  it  is  probable  several 
weeks  (or  months)  may  elapse  previous  to  his  being 
able  to  do  so,  the  court  adjourns  to  the  quarters  of 
Captain  A.  B. ;  having  assembled  there,  the  presi- 
dent, members,  and  all  parties  before  the  court,  being 
present,  Captain  A.  B.  is  duly  sworn. 

45.  The  evidence  of  the  sick  man  is  then  taken, 
after  which  the  court  returns  to  its  former  place 
of  assembly,  when  the  Judge  Advocate  must  enter 
a  minute  to  the  following  effect : 

The  court  having  returned,  to  its  former  place  of 
assembly,  and  all  parties  being  present,  the  trial  pro- 
ceeds. 

*  Bombay  Military  Regulations,  and  Opinions  of  Attorney-Gen 
eral,  2,  415. 
f  Hough. 


24  PITIES    OF    JFDGE    ADVOCATE, 

EVIDENCE  OF  ABSENT  WITNESS  :    HOW  TAKEN. 

46.  In  cases  not  capital,  the  depositions  of  wit- 
nesses, not  in  the  line  or  staff  of  the  army,  may  be 
received.  This  deposition  may  be  made  before  a 
justice  of  the  peace,  provided  the  prosecutor  and 
the  person  accused  are  present  at  the  taking  of 
the  same,  or  are  duly  notified  thereof.  This  pro- 
vision of  the  law  is  confined  to  non-military  per- 
sons.* The  74th  Article  of  War,  by  providing, 
under  certain  restrictions,  and  in  cases  not  capital, 
that  depositions  may  be  taken,  negatives  their  al- 
lowance in  other  cases.f 

WRITTEN  D0CU3IENTS:    HOW  AUTHENTICATED  AND 
RECORDED. 

47.  Every  kind  of  writing,  if  duty  authenticated, 
is  admissible  at  a  court-martial;  but  the  original 
must  be  produced,  and  no  copy,  except  of  official 
papers,  should  be  admitted,  unless  the  court  is  sat- 
isfied that  it  was  not  in  the  power  of  the  party  to 
produce  the  original. t  An  order  of  the  Adjutant 
and  Inspector-General  has  the  force  of  regulations 
for  the  government  of  all  branches  of  the  army, 
and  printed  or  written  copies  of  the  same  are  duly 
authenticated  when  endorsed  as  official  by  any 
assistant  adjutant-general,  or  by  any  chief  of  a 
bureau  of  that  department^ 

48.  It  is  a  universal  rule  that,  where  any  docu- 
ment is  produced  and  read  by  one  party,  the 
whole  is  to  be  read  if  the  adversary  require  it ;  for 
unless  the  whole  be  read,  there  can  be  no  certain- 
ty as  to  the  real  sense  and  meaning  of  the  whole 
document.  J 

49.  In  drawing  up  the  proceedings  of  courts- 
martial,  all  written  evidence  which  tends  to  prove 
the  charge  ought  to  be  recorded  in  the  place 
to  which  it  applies,  but  such  as  merely  tends  to 
explain  or  illustrate  the  evidence,  or  such  parts  of 

*Hugkeg.  f  Opinions  of  Attorney-General,  2,  344. 

%  Kennedy.  #  A.  and  I.  G.  General  Orders,  147,  1863. 


AS    OFFICER    OF    THE    COURT.  25 

the  documents  given  in  evidence  as  do  not  imme- 
diately relate  to  the  charge,  should  be  annexed  to 
the  proceedings  as  an  appendix.* 

50.  When  a  written  document  is  handed  to  the 
court,  it  is  usual  for  the  Judge  Advocate  to  enter 
a  minute  on  the  proceedings  similar  to  the  follow- 
ing : 

The  prosecutor  [witness,  or  prisoner]  here  hands 

into  court  a  letter  from  to  the  address  of 

,  dated  ,  which  is  read,  admitted  by  the 

court,  marked  No.  1  [or  2,  or  3,  or  A,  B,  or  C],  and 
attached  to  the  proceedings. 

EVIDENCE  READ  OVER  TO  WITNESS  BEFORE  LEAVING 

THE  COURT. 

51.  J t  is  customary,  when  deemed  necessary  by 
the  court,  or  desired  by  a  witness,  to  read  over  to 
him,  immediately  before  he  leaves  the  court,  the 
record  of  his  evidence,  which  lie  is  desired  t<»  cor- 
rect, if  erroneous;  and,  with  this  view,  any  remark 
or  explanation  is  entered  on  the  proceedings.  It 
would  obviously  be  improper  to  read  over  the  rec- 
ord to  a  witness,  or  permit  him  to  refer  to  it  when 
under  or  previous  to  cross-examination;  no  eras- 
ure or  obliteration  is,  under  any  circumstances, 
admitted.f 

WITNESS    CAN    CORRECT    OR   AMEND    HIS    TESTIMONY. 

52.  At  courts-martial  a  witness  may,  after  hav- 
ing left  the  court,  and  even  on  a  subsequent  da}*, 
request  to  be  readmitted,  in  order  to  correct  or 
amend  the  evidence  he  has  given.*  In  wThich  case 
the  Judge  Advocate  thus  records,  on  the  proceed- 
ings: 

2d  witness  for  ~\      Lieut.  , regiment, 

the  prosecution  j-  appears  in  court,  and  requests per- 
[or  defence'}.    )  mission  that  the  evidence  he  gave 
on may  be  read  over  to  him,  to  enable  him  to  cor- 
rect [amend,  or  explain]  such  portion  of  it  which  he 

'Kennedy.  f  Simmons. 


20  DUTIES  Ol  JUDGE  ADVOCATE, 

considers  was  not  sufficiently  clear  (or  as  the  case 
may  be). 

The  Judge  Advocate  then  enters  on  the  proceed- 
ings whatever  explanation  the  witness  offers.* 

58.  When  the  court  has  asked  all  questions  of  a 
witness  he  is  directed  to  withdraw,  and  this  is  al- 
ways noticed  in  the  proceedings,  to  show  that  two 
witnesses  were  not  in  court  at  the  same  time,f 
thus: 

The  witness  withdraivs,  or  retires. 

ADJOURNMENT. 

54.  The  hour  of  adjournment  its  well  as  that  of 
assembly  each  day,  is  invariably  to  be  entered  on 
the  record  of  the  proceedings  of  courts-martial ; 
and  in  the  event  of  adjournment  at  an  hour  earlier 
than  usual,  the  cause  thereof  is  to  be  explicitly 
stated.  X 

55.  The  usual  mode  of  recording  such  occur- 
rences is  as  follows : 

It  being  3  o'clock,  p.  m.,  the  court  adjourns  till  11 

o'clock  to-morrow  forenoon,  Wednesday,  the day 

of  January,  1864. 

The  other  witness  not  being  in  attendance,  or  a 
member  being  ill  (or  as  the  case  may  be),  the  court, 
at  1  o'clock,  p.  m.,  adjourns  till  11  o'clock  to-morrow 
forenoon,  Tuesday,  the day  of  January.  18(>4. 


Colonel  and  President. 

,  Captain, 

Judge  Advocate. 
It  is  now  customary  to  sign  each  day's  proceed- 
ings for  the  purpose  of  authentication. 

REASSEMBLY,  AND  FAJR  COPY  OF  PROCEEDINGS. 

b<o.  At  the  close  of  the  business  of  each  day,  and 
in  the  interval  before  the  next  meeting  of  the 
court,  it  is  the  duty  of  the  Judge  Advocate  to  make 

*  Hughe?.  t  Hough.  }  Madras  Mil.  Reg.  • 

-x- 


AS    OFFICER    OF    THE    COURT.  2? 

a  fair  copy  of  the  proceedings,  which  he  continues 
to  copy  to  the  conclusion  of  the  trial.* 

57.  On  the  assembly  of  the  court  daily,  the 
Judge  Advocate  calls  over  the  names  of  the  offi- 
cers composing  it;  and  if  any  are  absent,  the  cause 
must  be  stated  and  minuted  on  the  proceedings, 
thus : 

Second  t>ay. 

11  o'clock,  a.  in.,  Wednesday,  the day  of  Jan- 
uary, 1864. 

At  a  General  Court-martial,  then  held  at , 

pursuant  to  adjournment, 

Present — Colonel  A.  />..  Major  C,  J),  (and  the 
names  of  each  of  the  other  officers  as  first  re- 
corded). 

Absent — Captain  M.  X.,  reported  tick  (or  as  the 
case  may  be). 

Read  over  the  proceedings  of  yesterday. 

58.  A  fair  copy  of  the  previous  day's  proceed- 
ings should  always  be  read,  when  any  trifling 
error  or  omission  (which  might  be  forgotten  after 
the  delay  of  several  days)  can  be  easily  rectified  ; 
and,  above  all,  it  keeps  the  court  in  mind  of  the 
evidence  that  has  been  given  ;  and  instead  of  being 
a  loss  of  time,  it  really  expedites  the  business  of 
the  court,  which  would  otherwise,  perhaps,  have 
to  adjourn  tor  a  day  or  two,  to  enable  the  fair 
copy  of  the  proceedings  to  be  prepared-! 

PROSECUTION    CLOSED. 

50.  When  the  prosecution  is  closed,  the  Judge 
Advocate  must  enter  a  minute  to  that  effect  on 
the  proceedings,  thus: 

The  prosecution  is  here  closed. 

After  Avhich  no  further  evidence  on  the  part  of 
the  prosecution  can  be  admitted, t  except  in  reply, 
as  is  noticed  hereafter. § 

*Tytler— Kennedy.      f  Hashes.      J  Ibid.       2  See  section  «0. 


28 


DEFENCE. 


60.  The  prosecution  being  closed,  the  prisoner 
then  enters  on  his  defence. 

61.  The  prisoner  having  finished  the  examina- 
tion-in-chief of  each  witness,  the  Judge  Advocate 
cross-examines.  The  prisoner  re-examines  to  the 
extent  allowed  the  prosecution,  that  is,  on  such 
points  as  the  cross-examination  may  have  touched 
upon,  and  the  court  puts  any  questions  deemed 
necessary.* 

prisoner's  address. 

62.  The  address  of  the  prisoner,  prepared  sub- 
sequent to  the  reception  of  all  the  testimony,  is 
read  by  the  prisoner,  or  if  any  cause  should  pre- 
vent his  so  doing,  it  may  be,  at  the  request  of  the 
prisoner,  read  by  his  counsel,  the  Judge  Advocate, 
or  a  military  friend,*)-  an  entry  of  which  is  made 
as  follows: 

The  accused,  Captain  A.  B.,  presented  and  read  [or 
which  was  read  by  his  counsel]  the  written  defence 
(marked  A)  appended  to  these  proceedings. 

63.  When  the  defence  is  closed,  the  Judge  Ad- 
vocate enters  a  minute  to  that  effect  on  the  pro- 
ceedings, thus : 

The  defence  is  here  closed. 

After  which  no  evidence  on  the.  part  of  the  de- 
fence can  be  admitted.! 

REPLY. 

64.  It  is  conceded  that  the  Judge  Advocate  has 
the  right  to  reply  in  any  case,  whether  evidence 
has  been  adduced  by  the  defence  or  not.  By  a 
reply  is  understood  the  right  of  observing  on  the 
evidence  in  general,  or  by  controverting  any  new 
matter  which  may  have  been  introduced  by  the 
prisoner  in  his  defence  by  other  testimony.  New 
matter  may  be  considered  as  anything  introduced 

:;:  Simmons.  f  De  Hart.  \  Hughes. 


AS    OFFICER    OF    THE    COURT.  29 

into  the  defence  on  which  the  prosecution  has  had 
no  previous  opportunity  of  addressing  the  court, 
and  when  a  reply  is  desired  by  the  Juflge  Advo- 
cate the  court  will  always  grant  a  reasonable  time 
for  its  preparation,*  and  upon  his  reading  it  the 
trial  ceases. 

COURT  MAY  RECALL  A  WITNESS. 

65.  After  the  prosecution  and  defence  are  closed, 
it  is  still  competent  for  a  court-martial  to  recall  a 
witness  for  the  purpose  of  putting  any  particular 
question  deemed  essential.  The  parties  must, 
however,  be  present.f 

THE    TRIAL    FINISHED. 

66.  When  the  prosecutor  and  prisoner  have  laid 
their  respective  cases  before  the  court,  the  trial  is 
finished,  which  circumstances  should  invariably  be 
recorded  on  the  proceedings.  A  minute  similar 
to  the  following  is  usually  entered  : 

The  trial  is  finished,  and  the  parties  and  Witnesses 
are  discharged  from  further  attendance. 

67.  The  court  is  then  closed,  and  the  Judge 
Advocate  reads  over  the  entire  fair  copy  of  the 
proceedings,  or  such  parts  of  it  as  may  be  con- 
sidered necessary.J  JSTo  evidence  should  be  re- 
ceived after  the  court  has  been  cleared  for  delibe- 
ration^ 

FINDING. 

68.  The  Judge  Advocate  now  proceeds  to  take 
the  opinions  of  the  members  on  the  evidence  in 
the  matter  before  them,  by  putting  the  following 
question  to  each  individual,  commencing  with  the 
youngest  member :  "  From  the  evidence  in  the 
matter  now  before  you,  how  say  you  of  the  speci- 
fication, or  charge  :  is  the  prisoner  guilty,  or  not 
guilty?"*  ' 

*  DeHart,  and  Opinions  of  Attorney-General,  2,  2S6. 

f  Simmons.  {  Hughes. 

i  Opinions  of  Attorney-General,  vol.  3,  545. 


30  DUTIES    OF    JUDGE     ADVOCATE, 

69.  When  the  charge  consists  of  several  counts  or 
specifications,  each  is  put  consecutively,  first  on  the 
specifications  and  then  on  the  charge.  The  Judge 
Advocate,  immediately  after  he  has  taken  the  votes 
on  each  count  or  specification,  states  the  result. 

70.  The  majority,  in  every  instance,  binds  the 
minority.  The  opinion  of  the  majority  is  the 
opinion  of  the  court.* 

71.  Courts-martial  are  bound  to  exhaust  the 
whole  charges  that  come  before  them,  by  express- 
ly acquitting  or  convicting  the  prisoner  of  each 
allegation  that  is  contained  in  them.f 

72.  Should  it  happen,  by  the  organization  of  the 
court,  or  from'  the  accident  of  sickness  or  death  of 
any  of  the  members,  that  there  is  an  equality  of 
votes  upon  the  finding,  the  doubt  must  be  resolved 
in  favor  of  the  prisoner,  and  he  must  have  the 
benefit  of  an  acquittal.*  The  president  has  no 
double  or  casting  vote. J 

73.  The  court,  in  its  findings,  may  show  that 
it  esteems  the  prisoner  not  only  innocent  of  the 
specific  charges  preferred  against  him,  but  likewise 
of  all  impropriety  of  conduct  in  any  circumstance 
connected  with  them,  by  acquitting  him  either 
"  fully,"  or  "  most  fully,"  or  "  honorably,"  or 
"  most  honorably,"  or  "  fully  and  honorably,"  or 
"  most  fully  and  most  honorably."  The  word 
"  honorably"  should  never  be  used  except  in  ac- 
quitting a  prisoner  of  charges  in  which  his  honor 
is  implicated.-)- 

74.  Courts-martial  may  also  declare  the  charge 
to  be  u  frivolous,"  "vexatious,"  ''unwarranted," 
"  unfounded,"  or  "  malicious,"  and  that  the  prosecu- 
tor, in  preferring  it,  was  actuated  by  private  pique 
and  resentment,  and  not  by  any  motive  for  the 
good  of  the  public  service.*  This  is  a  measure 
which  a  court-martial  ought  always  to  adopt 
when  the  conduct  of  the  prosecutor  is  deserving 
of  censure,  as  it  is  not  only  a  satisfaction  due  to 


j  Kennedy.  i  Hough. 


AS    OFFICER    OF    THE    COURT.  -II 

the  prisoner,  but  as  it  may  often  prevent  the  ne- 
cessity of  another  trial.* 

75.  Should  the  court  be  unanimous  in  their 
opinion  on  any  point,  the  Judge  Advocate  is  not 
authorized  to  insert  the  word  "  unanimous. "* 

76.  Civil  juries  are  required  to  find  a  verdict 
before  separating,  but  such  is  not  the  case  with 
military  courts.  Indeed,  the  nature  of  the  of- 
fences considered  by  them,  pertaining  to.  and 
affecting  a  particular  community  only,  makes  it 
unnecessary.  They,  therefore,  may  adjourn  from 
day  to  day.  to  consider  their  finding  or  sentence. 1 

SENTENCE. 

77.  Should  the  court  find  the  prisoner  guilty, 
the  Judge  Advocate  then  proceeds  to  take  their 
opinions  on  the  punishment  to  be  awarded,  by 
putting  to  each  member,  commencing  with  the 
youngest,  this  question :  u  The  court  having 
found  the  prisoner  guilty  of  such  an  offence,  in 
your  opinion  what  punishment  ought  to  be  award- 
ed^'J 

78.  The  Judge  Advocate,  as  on  the  finding, 
writes  down  on  a  sheet  of  paper  the  nature  and 
quantum  of  punishment  each  member  considers 
should  be  awarded;  and  immediately  after  he  has 
taken  the  votes  of  all.  states  the  result.  Here 
also  the  majority  in  every  case  binds  the  minori- 
ty, except  in  cases  where  the  extreme  penalty  of 
the  law,  viz.,  death,  is  awarded,  when  the  votes 
of  two-thirds  of  the  court  are  requisite. § 

79.  Every  member  must  give  his  vote,  whether 
he  has  acquitted  or  condemned  the  prisoner.|| 

80.  When  the  judgment  of  members  differs  as 
to  the  nature  of  the  punishment,  it  is  usual  to  sep- 
arate the  question  :  first,  to  ascertain  the  nature, 
the  majority  deciding;  then  the  quantum. 

81.  An  officer  is  liable  to  be  adjudged  the  fol- 
lowing punishments  :  Death  ;  reprimand  or  admo- 

*  Griffiths.      fDeHart.       i  Hughes.        ^Kennedy.      ||  Simmons. 


32  DUTIES    OF    JUDGE    ADVOCATE, 

nition,  public  or  private;  cashiering  or  dismissal 
from  the  service  j  suspension  from  rank,  pay,  and 
emoluments. 

82.  The  legal  punishments  for  soldiers  are  : 
Death;  confinement;  confinement  on  bread  and 
water  diet;  solitary  confinement;  hard  labor; 
ball  and  chain;  forfeiture  of  pay  and  allowances; 
discharges  from  service;  and  branding  with  initial 
letter  on  the  hip,  indelibly.  Solitary  confine- 
ment, or  confinement  on  bread  and  water,  shall 
not  exceed  fourteen  days  at  a  time,  with  intervals 
between  the  periods  of  such  confinement  not  less 
than  such  periods,  and  not  exceeding  eighty-four 
days  in  a  year.*  Non-commissioned  officers,  in 
addition  to  the  above,  may  be  sentenced  to  loss  of 
rank  by  reduction  to  the  station  of  a  private  sol- 
dier; and  in  all  cases  where  he  is  to  be  punished 
by  imprisonment,  he  must  first  be  reduced. 

83.  When  the  Judge  Advocate  has  taken  the 
votes  of  the  members  of  the  court  on  all  points, 
he  draws  up  the  finding  and  sentence,  which,  being 
approved  of  by  the  court,  must  be  entered  on  the 
proceedings,  alwa}^s  in  the  Judge  Advocate's  own 
handwriting. y 

84.  With  respect  to  the  wording  of  the  sen- 
tence, in  cases  discretionary  with  the  court,  no 
special  form  is  necessary.  It  should  obviously  be 
expressed  in  clear  and  unambiguous  language.  In 
cases  not  discretionary,  the  court  would  do  well 
to  adhere  as  literally  as  possible  to  the  terms  of 
the  statute,  or  Article  of  War,  by  virtue  of  which 
the  punishment  is  awarded. J 

85.  The  sentence  recorded  must  never  give  any 
intimation  of  the  majority  by  which  it  was  pro- 
nounced, except  that,  in  case  of  sentence  of  death, 
the  fact  that  two-thirds  did  concur  must  be 
stated.  The  court  should  studiously  avoid  all 
arguments  or  special  reasons  in  justification  of 
its  sentences.! 

*  Army  Reg.,  773.      f  Kennedy.      J  Simmons.      §  O'Brien. 


AS    OFFICER    OF    THE    COURT.  MB 

86.  The  finding  and  sentence  are  usually  drawn 
up  as  follows : 

The  statement  of  the  parties  being  thus  in  posses- 
sion of  the  court,  the  court  urns  cleared  for  delibera- 
tion; and  having  maturely  considered,  the  evidence  ad- 
duced, finds  the  accused,  Captain  A.  B., regiment, 

as  follows: 

Of  the  first  Specification  of  first  Charge:  "Guilty." 
Of  the  second  Specification  of  first  Charge  :  • 
Guilty" 
Of  the  third  Specification  of  first  Charge:  "Guilty, 

ft-if/i  the  exception  of  the  words ." 

Of  th e  first  Charge  .«   • k  G u ilty.1 ' 
Of  the  Specification  of  the  second  Charge: 
Guilty:' 

Of  the  second  Charge  :   u  Not  Guilty:' 
And.  the  court  does,  therefore,  adjudge  him,  the  said. 
Captain  A.  B., regiment,  to  be  cash>> 

5 

(1olonel  and  President. 

,  Captain. 

Judge  Advocate. 

[If  the  prisoner  is  acquitted.] 
And  the  court  does,  therefore,  acquit  him.  the  said 
Lieutenant  C.  D.,  — —  regiment,  of  all  and  every  part 
of  the  charge. 

Signed  as  above. 

MITIGATING    CIRCUMSTANCES    AND    RECOMMENDA- 
TION   TO    MERCY. 

87.  When  any  extenuating  circumstances  at- 
tending the  offence  which  ought  to  be  considered 
in  favor  of  the  prisoner,  appear  in  evidence,  they 
should,  in  strictness,  influence  the  finding.  For 
when,  as  it  is  too  often  the  case,  a  deviation  from 
this  simple  rule  occurs,  the  punishment  becomes 
inadequate  to  the  finding  of  the  court.  This 
must  always  be  more  or  less  prejudicial  to  mili- 
tary discipline;  and  nothing  can  more  contribute 
to  render  military  law  vague  and  uncertain  than 


/&4  JHJTJKS    OK    JUDGE    ADVOCATE, 

the  striking  discordances  between  the  findings  and 
sentences  of  courts-martial.  This  is  generally 
unnecessary,  for  courts  are  not  bound  to  confine 
themselves  to  a  general  verdict  of  guilty,  or  not 
guilty.  If  courts  do  their  duty  in  the  finding, 
every  extenuating  circumstance  will  have  its  fair 
weight  in  the  sentence.  Indeed,  common  justice 
requires  that  the  prisoner  should  not  be  found 
guilty  of  a  greater  crime  than  the  evidence  fixes 
upon  him;  and,  if  the  specification  causes  the  act 
to  appear  more  criminal  than  the  evidence  will 
warrant,  the  court  should  correct  this,  and  show 
the  exact  state  of  the  case.  But  no  extenuating 
circumstances,  not  connected  with  the  acts  alleged, 
can  have  any  effect  except  in  inducing  a  recom- 
mendation to  mercy.* 

88.  No  recommendation  to  mercy  is  to  be  writ- 
ten in  the  body  of  the  sentence;  but  it  is  to  be 
inserted  on  the  same  page,  if  possible,  below  the 
signatures  of  the  President  and  Judge  Advocate.f 

89.  The  usual  mode  of  recording  recommenda- 
tions to  mercy  is  as  follows  : 

The  court  having  thus  'performed  the  painful  duty 
of  awarding  punishment,  in  strict  conformity  to  an 
Article  of  War,  which  deprived  it  of  all  discretion- 
ary power,  begs  leave  to  recommend,  the  case  of 


to  the  merciful  consideration  of  the  confirm- 
ing authority. 

The  court  may  then  add  any  further  remarks 
that  may  be  deemed  necessary. % 


CLOSING   THE    PROCEEDINGS   AND    MAKING    UP    RE- 
CORD. 

90.  A  blank  space  of  at  least  a  page  is  inva- 
riably to  be  left  at  the  conclusion  of  the  record  of 
proceedings  of  all  courts-martial,  in  order  that  the 
commander-in-chief,  or  officer  to  whom  the  pro- 
ceedings are  to  be  submitted,  may  find  room  to 

*  O'Brien,  265.  |  Array  Regulations,  S72.  J  Hughes. 


AS    OHICKR    OF    THi:    COURT.  :'»."> 

insert  his  signature,  together  with  such  remarks 
as  the  particular  case  may  call  for.* 

91.  When  more  than  one  case  has  been  tried  by 
the  same  court,  the  record  of  each  case  must  be 
made  up  complete  in  itself,  and  must  recite  all 
the  orders,  arranged  according  to  their  respective 
numbers  or  dates  The  proceedings  should  be 
written  on  foolscap,  the  pages  numbered,  with  a 
margin  of  one  inch  on  the  left  side  of  each  page, 
and  at  the  top  of  the  odd  and  bottom  of  the  even 
pages;  through  this  last  margin  the  sheets  to  be 
stitched  together, f  and  then  folded  twice.  The 
endorsement  must  be  made  at  the  top  of  the  first 
quarter  of  the  sheet,  and  is  generally  as  follows  : 

Proceedings  of  a  G.  0.  J/.,  <-onc 

at ,  G.  0.  No.  — .  series  1864, 

Department    8.    c.    Ga.,   and    F&i., 

Jan.  — ,  1864. 

Confederate  States,  ~] 

VS.  Si  -7 

Capt. i ,  ;  Case  No.  - 

Co.A,—  nyt.S.C.  V.  J 

,  Judge  Advocate. 

The  cases  should  invariably  be  numbered,  as  it 
shows  the  reviewing  officer  if  any  have  been  lost 
in  lor  warding. 

REVISION. 

92.  When  a  court-martial  is  ordered  to  revise 
its  finding  and  sentence,  it  is  usually  minuted  in 
the  proceedings  in  the  following  manner: 

Tenth  day. 

Eleven  o'clock,  a.  m.,    Monday,  the day  of 

January,  1864. 

At  a  General  Court-martial,  reassembled  at 


under  orders  from  the  Commanding  General, 


Present  the  same  members  as  on  Thursday,  the 


*  Madras  Mil.  Reg.  f  Army  Re-.,  871. 


30  DUTIES    OF    JUDGE    ADVOCATE, 

day  of  January,  1864,  to  wit :     [Then  follows  a  list 
of  all  the  officers.] 

The  Judge  Advocate  lays  before  the  court  the  an- 
nexed letter  [or  order]  from  Head-quarters,  Depart- 
ment of  South  Carolina,  Georgia,  and  Florida,  dated 
,  which  is  read. 

The  court  proceeds  to  reconsider  its  findings  and 
sentence. 

Revised  finding  ) 
and  sentence.    ] 

93.  Whenever  the  proceedings  of  :i  court-martial 
are  ordered  to  be  revised,  it  is  illegal  for  the  court 
to  call  and  examine  fresh  witnesses  ;  the  revision 
is  to  be  confined  entirely  to  a  reconsideration  of 
the  matter  already  recorded  on  the  proceedings.* 

94.  Only  those  present  during  the  investigation 
of  the  case,  and  who  voted  on  the  finding  or  sen- 
tence, should  be  allowed  to  sit  on  the  re-examina- 
tion of  the  reasons  upon  which  the  former  opinion 
of  the  court  rested.  It  also  seems  more  just,  both 
to  the  prosecution  and  defence,  that  all  the  mem- 
bers who  voted  in  the  first  instance  should  also  be 
present  during  the  revision  of  their  recorded  judg- 
ment. 

95.  When  a  case  is  thus  remanded  for  the  recon- 
sideration of  the  court,  it  is  their  duty  to  exam- 
ine all  the  points  to  which  their  attention  has  been 
directed,  with  the  utmost  care,  patience,  and  de- 
liberation, which  of  course  would  involve  a  recon- 
sideration of  their  former  opinion,  findings,  and 
sentence.  These,  however,  must  never  be  erased, 
but  the  revised  opinion  and  sentence  are  sent  in 
as  additions  to  the  record.f 

96.  It  is  to  be  particularly  observed,  that  how- 
ever excusable  an  adherence,  on  conscientious  mo- 
tives, to  finding  and  sentence  once  pronounced, 
may  be,  where  error  of  judgment,  arising  from  a 
misconception  of  the  law,  or  of  the  custom  of  war 
in  like  cases,  is  brought  to  the  notice  of  a  court- 

*  Bombay  Mil.  Reg.  f  Lee's  Vade  Mecum. 


AS    PUBLIC    PROSECUTOR.  37 

martial,  supported  by  respectable  authority,  its 
perseverance  in  error  is  a  dereliction  of  duty  and 
a  baneful  example.* 


CHAPTER  IV. 

JUDGE  ADVOCATE  AS  PUBLIC  PROSECUTOR. 

1.  The  Judge  Advocate  being  prosecutor  for  the 
government,  must  not  induce  him  to  omit  anything 
on  the  records  of  the  court  that  ma}'  be  of  service 
to  the  prisoner  j  neither  is  he,  on  the  other  hand, 
to  let  the  cause  of  justice  suffer,  and  a  criminal  es- 
cape unpunished,  through  lenity  or  any  other 
motive  whatever.  But  in  the  prosecution,  though 
he  should  act  with  spirit  and  resolution  against 
daring  offenders,  yet  he  ought  to  be  cautious  not 
to  injure  and  oppress,  and,  much  more,  not  to  add 
insult  to  severity.  In  all  cases  where  misfortune 
is  interwoven  with  guilt,  he  should  make  it  appear 
that  detestation  of  the  crime,  and  a  regard  to  the 
public  safety  and  service,  are  not  inconsistent  with 
pity  to  the  man,  particularly  to  offenders  for  the 
first  time;  to  such  whose  crimes  are  small,  whose 
temptations  were  powerful,  and  who  appear  to 
have  been  seduced  by  others.f 

2.  The  duty  of  a  Judge  Advocate  as  a  public 
prosecutor  can  not  be  mistaken  :  he  is  appointed 
to  prosecute  in  the  name  of  the  government,  to 
search  out  the  truth,  and,  at  the  same  time,  "to 
obviate  a  failure  of  justice ;"  he  is  bound  to  lay  be- 
fore the  court  the  full  particulars  of  the  circum- 
stances which  are  considered  to  have  been  an  in- 
fringement of  the  ordinances  of  the  army,  and  in 
doing  so  must  produce,  without  partiality  or  favor 
to  either  party,  all  evidence  that  tends  to  elicit 
the  truth.  However  painful  it  may  be  to  his  feel- 
ings as  an  individual  to  sustain  a  prosecution, 
whether  the  evidence  tends  to  conviction  or  acquit- 

*  Bombay  Mil.  Reg.  f  Adye. 


38  DUTIES  OF  JUDGE  ADVOCATE, 

tal,  his  allegiance  to  his  government,  his  duty  to 
his  country,  the  maintenance  of  discipline,  and, 
above  all,  justice,  equally  demand  a  faithful  dis- 
charge of  the  duty.  Let  the  Judge  Advocate,  in 
the  performance  of  this  duty,  also  remember,  "  the 
good  of  the  service  excuses  all  things ;  the  conve- 
nience of  individuals  excuses  nothing,  when  the 
question  is  one  of  justice."* 


CHAPTER  V. 

DUTIES  OF    JUDGE  ADVOCATE    AS    LEGAL  ADVISER,  TO 
THE  COURT. 

1.  Another  important  duty  of  the  Judge  Advo- 
cate during  the  trial,  is  the  instructing  or  counsel- 
ling the  court,  not  only  in  matters  of  essential 
and  necessary  form,  with  which  he  must  be  pre- 
sumed to  he,  from  practice,  thoroughly  acquaint- 
ed, but  in  explaining  to  it  such  points  of  law  as 
may  occur  in  the  course  of  its  proceedings  :  for 
which  purpose  a  Judge  Advocate  ought  to  in- 
struct himself  in  the  general  principles  and  rules 
of  law,  and  in  the  practice  of  criminal  courts.f 

2.  On  every  occasion  when  the  court  demands 
his  opinion,  he  is  bound  to  give  it  with  freedom 
and  amplitude ;  and  even  when  not  requested  to 
deliver  his  sentiments,  his  duty  requires  that  he 
should  put  the  court  upon  its  guard  against  any 
deviation  either  from  any  essential  or  necessary 
forms  in  its  proceedings,  or  a  violation  of  mate- 
rial justice  in  its  final  sentence  and  judgment.* 

3.  When  a  court  is  deliberating  on  its  finding, 
it  is  obvious  that  the  Judge  Advocate  is  likely  to 
be  the  person  best  qualified  to  assist  in  judging  of 
the  credibility  and  weight  of  the  evidence  record- 
ed, and  in  applying  it  correctly  to  the  facts  at 
issue.     \i\  therefore,  he  should  observe  that  the 

*  Hughes.  t  Tytler. 


AFTER    COURT-MARTIAL.  *3il 

court  appeared  inclined  to  find  a  verdict  contrary 
to  such  evidence,  it  is  undoubtedly  bis  duty  to  en- 
deavor, by  the  expression  of  his  opinion,  to  prevent 
it  from  deciding  so  erroneously.* 

4.  But  when  the  court  is  passing  sentence,  the 
Judge  Advocate  ought  not  then  to  offer  any  opin- 
ion;  for  though  he  may  be  considered  to  be  in  no 
slight  degree  responsible  for  the  correctness  of  the 
finding,  he  is  in  no  means  answerable  for  the  ade- 
quacy or  inadequacy  of  the  punishment  which  the 
court  may  award.* 

5.  In  cases,  however,  where  the  Judge  Advocate 
thinks  that  a  particular  Article  of  War  applies  to 
the  offence  of  which  a  prisoner  has  been  found 
guilty,  it  is  his  duty  to  point  it  out  to  the  court  ; 
and  if  any  question  arises  relative  to  its  applica- 
bility, it  will  not  be  disputed  that  lie  ought  also  to 
give  his  opinion  on  Mich  an  occasion.'1' 


CHAPTER    VI; 
DUTIES  Of  judge   advocate   after  the   PROCEED - 

rNGS  OF  A  COURT-MARTIAL  ARE  CLOSED. 

1.  The  Judge  Advocate  lays  the  proceedings  of 

courts-martial  before  the  commander-in-chief,  t<> 
whom  he  makes  his  report.  Though  he  is  very 
properly  forbidden  to  discover  or  disclose  the  vote 
or  opinion  of  any  particular  member,  still  he  is 
not  precluded  by  the  article,  when  he  makes  his 
report,  if  required  so  to  do.  to  state  any  circum- 
stance within  his  knowledge  which  may  not  be 
recorded  on  the  proceedings,  which  the  command- 
er-in-chief should  be  confidentially  informed  of. 
So  long  as  it  does  not  extend  to  the  prohibited  dis- 
covery or  disclosure  of  the  vote  or  opinion  of  any 
particular  member,  it  ma}7  go  to  the  general  opin- 
ion of  the  court,  which  can  not  affect  the  members 
individually  or  collectively.! 

*  Kennedy.  f  Hough. 


40  GENERAL    OBSERVATIONS    ON 

2.  It  is  proper  that  the  Judge  Advocate  should 
retain  in  his  own  possession  the  original  minutes 
of  the  proceedings  drawn  up  by  him  in  court  dur- 
ing the  course  of  the  trial,  that  in  case  of  any 
after  questions  which  may  be  moved  in  the  ordi- 
nary courts  of  law,  touching  the  conducting  or  re- 
sult of  the  trial,  the  Judge  Advocate  may  have 
recourse  to  them  as  necessary  documents,  if  he 
should  be  called  upon  to  give  evidence  in  relation 
thereto.* 

3.  When  the  proceedings  upon  the  trial  of  the 
last  prisoner  to  be  tried  before  any  general  court- 
martial  are  forwarded  to  head-quarters,  the  Judge 
Advocate  is  invariably  to  make  a  report  to  the 
adjutant-general  that  the  court  is  adjourned  until 
further  orders,  and  that  there  are  not  any  more 
prisoners  for  trial. f 


CHAPTER  VII. 

ON  PREPARATION  OF  CHARGES. 

1.  The  technical  strictness  used  in  an  indictment 
is  not  necessary  in  the  framing  of  a  charge,  but  it 
must  be  sufficiently  precise  in  specifying  the  fact 
or  facts  alleged  to  have  been  committed,  so  as  to 
show  whether  or  not  they  constitute  the  criminal 
offence  intended. 

2.  The  name  of  the  prisoner,  his  rank,  company, 
and  regiment  should  be  written  at  full  length,  all 
the  dates  must  be  in  Avords  and  not  in  figures,  and 
in  describing  the  "time"  and  "place  "  "when" 
and  "  where  "  the  fact  to  which  criminality  is  at- 
tached took  place,  the  utmost  precision  must  be 
observed,  or  else  the  words  "  on  or  about" — "  at 
or  near" — must  be  inserted-! 

3.  Facts  of  a  distinct  nature  arc  not  to  be  in- 
cluded in  one  and  the  same  charge,  or  specification 

*  Tjtler.         f  Madras  Mil.  Reg.         J  Bombay  Mil.  Reg. 


PREPARATION    OF    CHARGES.  41 

of  a  charge;  but  each   different  fact  is  to  be  set 
forth  in  a  distinct  charge  or  specification.* 

4.  All  extraneous  matter  is  to  be  carefully  avoid- 
ed, and  nothing  is  to  be  alleged  but  that  which  is 
culpable,  and  which  the  complainant  is  prepared 
to  substantiate  before  a  court-martial.* 

5.  The  charge  must  not  state  that  the  offence 
alleged  has  been  committed  in  breach  of  any  par- 
ticular Article  of  War;  hut  in  cases  in  which  the 
allegation  comes  directly  under  any  enactment, 
it  is  to  be  set  forth  in  the  terms  therein  used  ;  and 
when  it  is  a  disorder  or  neglect  not  specially  pro- 
vided for,  it  is  to  be  charged  as  tk  conduct  to  the 
prejudice  of  good  order  and  military  discipline."* 

6.  In  framing  a  charge  for  insubordinate  or  im- 
proper language,  the  expressions  which  may  have 
been  made  use  of  by  the  prisoner  are  not  to  be 
specified,  as  such  are  quite  unnecessary  tor  toe 
ends  of  justice  ;  and  the  offence  may  be  equally  de- 
veloped under  the  simple  allegation  of  u  nn  soldier- 
like," or  "insubordinate,"  or  "improper language/1 
as  by  inserting  the  disgusting  words  of  a  drunken 
or  mutinous  soldier.  The  words,  however,  must 
be  given  in  evidence  in  support  of  the  charge.* 

7.  To  all  charges  preferred  against  officers  and 
men,  a  list  of  witnesses  should  be  appended;  and 
it  is  proper  that  there  should  also  be  a  brief  state- 
ment of  what  each  witness  will  be  expected  to 
establish. 

8.  A  specification  should  be  a  concise  statement 
of  some  act  or  omission  of  duty,  which,  if  estab- 
lished, would  constitute  a  military  offence  for 
which  some  particular  Article  of  War  provides  or 
authorizes  a  measure  of  punishment.  Redundant 
words  or  phrases,  and  mere  legal  conclusions, 
should  be  rejected. 


•  Bombay  Mil.  Reg.  and  De  Hart. 


42 


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